The Seventh Circuit has rejected the award of attorneys’ fees award for a settlement that would provide the class coupons as a remedy for allegedly printing credit card expiration dates on sales receipts. See Redman v. Radioshack Corp., No. 14-1470 (7th Cir., 9/19/14).

Judge Posner wrote for the panel.  The court had consolidated appeals in two class actions brought under the Fair and Accurate Credit Transactions Act (“FACTA”), 15 U.S.C. § 1681c(g). The Act prohibits putting “the expiration date upon any receipt provided to the cardholder at the point of the sale or transaction.”  The goal is security: a thief can of course guess at the expiration date—the date is unlikely to be more than a few years in the future and there are only 12 months in a year; so if he guesses 60 times he’s very likely to hit the jackpot. But if he guesses wrong the first few times that he places a bogus order, the card issuer typically will get suspicious and refuse to authorize his next order.  Additional reasons for requiring deletion of the expiration date include that expiration dates combined with the last four or five digits of an account number can be used to bolster the credibility of a criminal who is making pretext calls to a card holder in order to learn other personal confidential financial information.

If a violation of the statute is willful, a consumer whose receipt contains as a result of the violation data that should have been deleted, but who sustains no harm because no one stole his identity as a result of the violation, is nevertheless entitled to “statutory damages,” as distinct from compensatory or punitive damages, of between $100 and $1000. 15 U.S.C. § 1681n(a)(1)(A). (Statutory damages are in effect bounties—means of inducing private persons to enforce a
regulatory law.)  Let’s put aside the court’s discussion of willfulness, and focus on the class issues.

The named plaintiffs (realistically, class counsel) agreed with RadioShack on terms of settlement. The essential term was that each class member who responded positively to the notice of the proposed settlement would receive a $10 coupon that it could use at any RadioShack store. The class member could use it to buy an item costing $10 or less (but he would receive no change if the item cost less than $10), or as part payment for an item costing more. He could stack up to three coupons (if he had them) and thus obtain a $30 item, or a $30 credit against a more expensive item. He could also sell his coupon or coupons, but the coupons had to be used within six months of receipt because they would expire at the end of that period. With regard to three‐coupon stacking, the only way a member of the class could obtain more than a single coupon would be to buy one or more coupons from another class member, because the settlement allows only one coupon per
customer no matter how many of his or her RadioShack purchases involved the alleged erroneous receipts. Although the class was assumed to contain 16 million members, notice of the proposed settlement was sent to fewer than 5 million. Of those potential class members who received notice of the proposed settlement, some 83,000 —a little more than one half of one percent of the entire class, assuming the entire class really did consist of 16 million different consumers— submitted claims for the coupon in response.

The court of appeals had lots of problems with the trial court’s handling of the proposed settlement, and offered a number of important observations on coupon settlements in particular.

The magistrate judge’s statement that “the fact that the vast majority of class members—over 99.99%—have not objected to the proposed settlement or opted out suggests that the class generally approves of its terms and structure” was “naive, as was her basing confidence in the fairness of the settlement on its having been based on “arms‐length negotiations by experienced counsel.” The fact that the vast majority of the recipients of notice did not submit claims hardly shows “acceptance” of the proposed settlement: rather, said Judge Posner,  it may show oversight, indifference, rejection, or transaction costs. The bother of submitting a claim, receiving and safeguarding the coupon, and remembering to have it with you when shopping may exceed the value of a $10 coupon to many class members. And “arm’s‐length negotiations” are inconsistent with the existence of a conflict of interest on the part of one of the negotiators— class counsel—that may warp the outcome of the negotiations. The magistrate judge’s further reference to “the considerable portion of class members who have filed claims” questionably treated one‐half of one percent as being a “considerable portion.”

Another controversial term of the proposed settlement was that RadioShack would pay class counsel $1 million  in attorneys’ fees, plus pay various administrative costs including the cost of notice. The agreed upon attorneys’ fees, plus the $830,000 worth of coupons at face value, plus the administrative costs, added up to about $4.1 million. Class counsel argued that since the attorneys’
fees were only about 25 percent of the total amount of the settlement, they were reasonable. The district court, agreeing, approved the settlement, precipitating this appeal by two groups of class members who objected to the settlement in the district court.

On appeal, the 7th Circuit noted that he law quite rightly requires more than a judicial rubber stamp when the lawsuit that the parties have agreed to settle is a class action. The reason is the “built‐in conflict of interest” in class action suits. The defendant typically is interested only in the bottom line: how much the settlement will cost it. And class counsel, as rational “economic man,” presumably is interested primarily in the size of the attorneys’ fees provided for in the settlement, for those are the only money that class counsel, as distinct from the members of the class, get to keep. The optimal settlement from the joint standpoint of class counsel and defendant, assuming they are self‐interested, is therefore a sum of money moderate in amount but weighted in favor of attorneys’ fees
for class counsel. The named plaintiff often is the nominee of class counsel, and in any event he is dependent on class counsel’s good will to receive the modest extra compensation ($5,000 in this case) that named plaintiffs typically receive.

Critically the judge must assess the value of the settlement to the class and the reasonableness of the agreed‐upon attorneys’ fees for class counsel, bearing in mind that the higher the fees the less compensation will be received by the class members. When there are objecting class members, the judge’s task is eased because he or she has the benefit of an adversary process: objectors versus settlors (that is, versus class counsel and the defendant).

Here, the trial judge accepted the settlors’ contention that the defendant’s entire expenditures should be aggregated in determining the size of the settlement; it was this aggregation that reduced the award of attorneys’ fees to class counsel to a “respectable‐seeming” 25 percent. But the roughly $2.2 million in administrative costs should not have been included in calculating the division of the spoils between class counsel and class members. Those costs, said the panel, are part of the settlement but not part of the value received from the settlement by the members of the class. The costs therefore shed no light on the fairness of the division of the settlement pie between class counsel and class members. Of course, without administration and therefore administrative costs, notably the costs of notice to the class, the class would get nothing. But also without those costs class counsel would get nothing, because the class, not having learned of the proposed settlement (or in all likelihood of the existence of a class action), would have derived no benefit from class counsel’s activity.

Therefore, said the court, the ratio that is relevant to assessing the reasonableness of the attorneys’ fee that the parties agreed to is the ratio of (1) the fee to (2) the fee plus what the class members received. At most they received $830,000. That translates into a ratio of attorneys’ fees to the sum of those fees plus the face value of the coupons of 1 to 1.83, which equates to a contingent fee of 55% ($1,000,000 ÷ ($1,000,000 + $830,000)). Computed in “a responsible fashion by substituting actual for face value,” the ratio would have been even higher because 83,000 $10 coupons are not worth $830,000 to the recipients. Anyone who buys an item at RadioShack that costs less than $10 will lose part of the value of the coupon because he won’t be entitled to change. Anyone who stacks three coupons to buy an item that costs $25 will lose $5. Anyone who fails to use the coupon within six months of receiving it will lose its entire value. (Six‐month coupons are not unusual, but redemption periods usually are longer. See, e.g., In re Mexico Money Transfer Litigation (Western Union & Valuta), 164 F. Supp. 2d 1002, 1010–11 (N.D. Ill. 2000) (35 months); Henry v. Sears Roebuck & Co., 1999 WL 33496080, at *10 (N.D. Ill. 1999) (nearly three years).)

The court found it significant that no attempt was made by the magistrate judge or the parties to the proposed settlement to estimate the actual value of the nominal $830,000 worth of coupons. Couponing is an important retail marketing method, and Judge Posner postulated that it would have been possible to obtain expert testimony (including neutral expert testimony by the court’s appointing an expert, as authorized by Fed. R. Evid. 706), or responsible published materials, on consumer response to coupons. And likewise it should have been possible to estimate the value of
couponing to sellers—a marketing device that in some circumstances must be more valuable than cutting price, as otherwise no retailer would go to the expense of buying and distributing coupons.

The court re-emphasized that in determining the reasonableness of the attorneys’ fee agreed to in a proposed settlement, the central consideration is what class counsel achieved for the members of the class rather than how much effort class counsel invested in the litigation. The court noted that in so doing it was not  taking sides in a controversy over the interpretation of the coupon provisions
of the Class Action Fairness Act, which states in part that If a proposed settlement in a class action provides for a recovery of coupons to a class member, the portion of any attorney’s fee award to class counsel that is attributable to the award of the coupons shall be based on the value
to class members of the coupons that are redeemed. Judge Posner thinks “this is a badly drafted statute.” To begin with, read literally, the statutory phrase “value to class members of the coupons
that are redeemed” would prevent class counsel from being paid in full until the settlement had been fully implemented. For until then one wouldn’t know how many coupons had been redeemed. An alternative interpretation of “value … of the coupons that are redeemed” would be the face value of the coupons received by class members who responded positively to notice of the class action. In this case that would be 83,000 of the millions of class members who received notice, though not all 83,000 will actually use the coupon.

Perhaps there is no need for a rigid rule—a final choice, for all cases, among the possibilities suggested. In some cases the optimal solution may be part payment to class members and
class counsel up front with final payment when the settlement is wound up. That might be appropriate in a case such as this, said the court. What was inappropriate, however, was an attempt to determine the ultimate value of the settlement before the redemption period ended without even an estimate by a qualified expert of what that ultimate value was likely to prove to be.

Some had called this  an “all‐coupon” case (only benefit was a coupon), but class counsel call it a “zero‐coupon” case. They argued that a coupon that can be used to buy an entire product, and not just to provide a discount, is a voucher, not a coupon. “Voucher” was indeed the term used in the settlement agreement, because the parties didn’t want to subject themselves to the coupon  provisions of the Class Action Fairness Act. But the idea that a coupon is not a coupon if it can ever be used to buy an entire product didn’t make any sense to Judge Posner, certainly in terms of the
Act. Why would it make a difference, so far as the suspicion of coupon settlements that animates the Act’s coupon provisions is concerned, that the proposed $10 coupon could be used either to reduce by $10 the cash price of an item priced at more than $10, or to buy the entire item if its price were
$10 or less? Coupons usually are discounts, but if the face value of a coupon exceeds the price of an item sold by the issuer of the coupon, the customer often is permitted to use the coupon to buy the item—and sometimes he’ll be refunded the difference between that face value and the price of the item.

This case illustrated, said the panel, why Congress was concerned that class members can be shortchanged in coupon settlements whether a coupon is used to obtain a discount off the full
price of an item or to obtain the entire item; class counsel’s proposed distinction between discount coupons and vouchers also would impose a heavy administrative burden in distinguishing
coupons used for discounts on more expensive items (“coupons” in class counsel’s narrow sense of coupon) and the identical coupons used to pay the full prices of cheaper items (“vouchers” in class counsel’s lexicon and not “coupons” at all).  Assessing the reasonableness of attorneys’ fees based on a coupon’s nominal face value instead of its true economic value was no less troublesome when the coupon may be exchanged for a full product.

The difficulty of valuing a coupon settlement exposed for the court another defect in the proposed settlement: placing the fee award to class counsel and the compensation to the class members in separate compartments. The $1 million attorneys’ fee is guaranteed, while the benefit of the settlement to the members of the class depends on the value of the coupons, which may well turn out to be much less than $830,000. This guaranty is the equivalent of a contingent‐fee contract that entitles the plaintiff’s lawyer to the first $50,000 of the judgment or settlement plus one‐third of any amount above $50,000—so if the judgment or settlement were for $100,000 the attorneys’ fee would be $66,667, leaving only a third of the combined value (to plaintiff and lawyer) of the
settlement to the plaintiff. Another questionable feature of the settlement for the appeals court was the inclusion of a “clear‐sailing clause”—a clause in which the defendant agreed not to contest class counsel’s request for attorneys’ fees. Because it’s in the defendant’s interest to contest that request in order to reduce the overall cost of the settlement, the defendant won’t agree to a clear‐sailing clause without compensation—namely a reduction in the part of the settlement that goes to the class members, as that is the only reduction class counsel are likely to consider. The existence
of such clauses thus illustrates the danger, said the court, of collusion in class actions between class counsel and the defendant, to the detriment of the class members.

The panel was also bothered by the fact that class counsel did not file the attorneys’ fee motion until after the deadline set by the court for objections to the settlement had expired. That violated Rule 23(h). See In re Mercury Interactive Corp. Securities Litigation, 618 F.3d 988, 993–95 (9th Cir. 2010); see also Committee Notes on the 2003 Amendments to Rule 23. From reading the proposed settlement the objectors knew that class counsel were likely to ask for $1 million in attorneys’ fees, but they were handicapped in objecting because the details of class counsel’s hours and expenses were submitted later, with the fee motion, and so they did not have all the information they needed to justify their objections.

So, coupon settlement and fee rejected.